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The ruling may bring an end to a high-profile medical malpractice case that was marked
by accusations of attorney misconduct and prolonged by satellite litigation over two
hefty sanction orders—including what one court described as an “unprecedented”
$1 million sanction that defense lawyer Nancy Raynor was ordered to pay for eliciting
prohibited testimony about a now-deceased cancer patient’s smoking history.

Raynor won a reversal of that
$1 million award in June. But she failed to win the reversal of another order that booted her from
the defense team in the medical malpractice case and fined her $44,693 for her purported
efforts to intimidate an expert witness who was expected to testify against her client,
Dr. Jeffrey Geller.

That sanction was based on a letter Raynor sent to the general counsel of the Hospital
of the University of Pennsylvania
(HUP), where the hostile expert, Dr. Stephanie Porges, worked as an emergency room
physician.

The offending letter warned the general counsel that although HUP wasn’t a party to
the lawsuit against Raynor’s client, it could suffer in future malpractice cases if
Porges testified in support of the plaintiff’s theory of liability.

Raynor argued that her decision to reach out to Porges’s employer was “the type of
thing that happens all the time,” and that her message was the sort of information
that “could have [been] relayed at lunch or a cocktail party.”

The appellate panel disagreed. In an opinion by Judge Patricia H. Jenkins, it rejected
Raynor’s argument that the trial court’s decision to disqualify her from the case
violated Geller’s constitutional right to counsel of his choice.

Ethics and Disqualification

Jenkins said the trial judge “properly disqualified Raynor because her conduct threatened
to impede the [plaintiff’s]
due process right to a fair trial and the court’s authority to administer justice.”

The court found that Raynor violated three Pennsylvania Rules of Professional Conduct
through her attempts “to tamper with Dr. Porges’ testimony,” which included instructing
a subordinate to follow up with HUP to inquire about whether Porges still intended
to testify for the plaintiff.

Those standards were Rule 3.4(a)(1), which prohibits obstructing another party’s access
to evidence; Rule 4.4(a), which forbids means of representation that “have no substantial
purpose than to embarrass, delay or burden a third person"; and Rule 8.4(a), which
prohibits violating ethics rules through the acts of another.

Jenkins acknowledged that the mere fact that an attorney violates an ethics rule “does
not warrant her disqualification from a case.” Quoting case law, she also noted that
lower courts must be circumspect when disqualifying attorneys based on perceived ethics
violations, because doing so could be viewed “as an impermissible meddling into the
administrative and supervisory functions of [the Pennsylvania Supreme Court] over
the entire judiciary.”

“But if an attorney’s conduct disrupts or threatens to disrupt the ‘fair trial which
due process requires,’
the trial court should disqualify her,” Jenkins wrote.

That’s what happened here, the appeals court said.

“The clear intent of [Raynor’s letter]
was to pressure HUP into coercing Dr. Porges to either change her opinion or to refrain
from testifying,” Jenkins wrote.

Pay Up

The appellate panel also rejected the argument that the trial court abused its discretion
in ordering Raynor to pay nearly $45,000 in sanctions.

It said Raynor’s disqualification, standing alone, “was not a sufficient remedy, because
the [plaintiff]
had to incur substantial expenses in order to obtain the disqualification order.”

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